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What Is a Trademark?

The manner in which a businessperson acquires a trademark is different from that in which other intellectual property, such as copyright or patent, may be legally protected. A trademark cannot be appropriated in gross (by itself) because its nature is incapable of such existence. A trademark is something that only exists with respect to some other commercial activity; this principle is at least in part due to the history of trademark law.

Since it developed as a device to identify a businessperson’s goods, the trademark, absent the sale of goods, had no function, and therefore no existence as a trademark. A device meant to identify the origin of the goods, which identifies neither origin nor goods, is simply not a trademark. Thus, a trademark is always appurtenant to (in connection with) commercial activity.

Why Do Trademarks Exist?

The common law always has recognized that one goal of trademark law is to prevent mistake, deception, and confusion with regard to the origin of goods. Time v. Motor Publications (1995). Protection of the public is thus one central feature of common law trademark.

An immediate byproduct of prevention of confusion and protection of the public, however, is that businesspeople who have adopted trademarks acquire a means of protecting their good will. Thus, trademark law tends to protect both sellers and purchasers.

How Do Trademarks Benefit Their Owners?

The expanded function of trademarks can be attributed in part to the fact that the modern market is not susceptible to or even dependent upon knowledge of the identity of different sellers. Trademark does serve to indicate origin, as one court has said, “though the identity of that source may in fact be unknown to the public,” Scott Paper v. Scott’s Liquid Gold (1977).

The functions of the modern trademark thus have expanded, as the modern market has evolved, to include (1) an indication of origin, (2) a guarantee of quality, and (3) a marketing and advertising device. Reddy Communications v. Environment Action Foundation (1979). Therefore, the legal protection of a trademark serves both to protect the public from confusion as well as to protect the trademark owner from losing his market.